Building information certificate consultancy

Who can apply, and how?

Applications go through the NSW Planning Portal to the local council where the land sits. A certificate may cover a whole building or only part of it, so one structure on the lot can be the subject of an application.

The owner may apply, or another person who has the owner's consent. Someone buying under a signed contract of sale can also apply, as can their solicitor or agent. A public authority may apply too, once it has given the owner notice of its intention.

For homes, councils usually want an original or certified survey report and plan showing the buildings as they are now. Council may ask for more plans, specifications or certificates, and its officers inspect the property before deciding.

What does it protect against?

Council can only issue a certificate if a careful inspection finds nothing that would let it order work or take legal action, or if it chooses not to act on what it finds.

After it is issued, council cannot direct that the building be repaired, demolished, altered, extended or rebuilt because of matters that existed before the issue date. Council also cannot bring civil proceedings about those matters for an encroachment on council land.

The 7 years people often mention is a different protection. For the first 7 years after issue, council cannot order work just because of ordinary wear and tear. The certificate does not prevent a fire safety order or an order to fix an unsafe building product.

What it does not do

A BIC is not retrospective approval. Applying does not protect you from a fine or legal action over unapproved work. Any use that requires development consent still requires it.

Council may order work to be done before it issues a certificate, or it may refuse the application. Councils say you can appeal to the Land and Environment Court in those cases.

Selling a home with unapproved work

A buyer can apply for a BIC during a sale. If you suspect unapproved work, consider dealing with it before you list, so it does not come up late in the sale. Some councils charge extra fees for structures built without approval, especially recent ones. Check your council's fees early.

Check the records before you apply

Before paying for an application, find out whether the work really is unapproved. Councils keep records of earlier approvals, and an old consent may already cover a deck or extension that a buyer has queried.

A building information certificate (BIC) deals with structures only. It does not give consent for a use, so a building being used in a way that needs consent may also need a DA for that use. Some properties need more than one pathway at the same time.

If an earlier approval turns up, compare it with what was actually built. Where the work strays from an approved DA, modifying that consent may be possible, as long as the development is not significantly changed. Parts that were never approved may still need a BIC alongside it.

Evidence councils may ask for

A survey by a registered surveyor is usually required. One council, for example, asks for it on residential land and wherever the work is within 900 millimetres of a boundary. Plans are normally drawn at 1:100 or 1:200 and show the building in its current form, with the work in question highlighted.

Councils often ask for certificates covering work that is now hidden behind linings or under floors. Depending on the job, these can include a structural engineer's certificate, termite protection to AS 3660, glazing to AS 1288 and AS 2047, smoke alarms to AS 3786, wet area waterproofing to AS 3740, and electrical and plumbing sign-off.

Council may also require work before it will issue the certificate, such as installing smoke alarms or repairing defective gutters and downpipes.

Fees for recent unapproved work

BIC fees are set by regulation. For Class 1 and Class 10 buildings, the base fee is charged per dwelling. Councils may also charge for extra inspections, for example after repair work is done.

If the application includes unauthorised building work carried out in the previous 24 months, an additional fee may apply. It is worked out from what the work is worth, using the DA and construction certificate or CDC fees that would have been payable had approval been sought. Skipping approval for recent work does not avoid those fees.

Getting the application right first time

Owner consent is essential. Some councils will not accept an application unless every registered owner has signed. Some councils also notify neighbours about the application, with one council allowing at least 14 days for this.

Once lodged, a BIC application generally cannot be amended. One council's application package points to a Land and Environment Court decision, Scarf v Shoalhaven City Council, on this point, so a substantial change may need a fresh application. Make sure the survey, plans and description cover every structure you want included before you lodge.

When a missed inspection blocks the OC

A BIC is not an approval, which means it cannot by itself support the issue of an occupation certificate (OC). A certifier also cannot direct you to obtain one, because applying is up to the owner and the decision rests with council.

Building Commission NSW gives an example of the two working together. A slab was poured without the certifier's inspection, so the owner obtained a BIC for the slab, work then resumed, and the OC excluded the slab. Another option in that case was to modify the construction certificate so the slab sat outside its scope.